Putting the Chief Justice’s switch in some recent historical/institutional perspective

The unfortunate leaks regarding the Supreme Court’s decisional process in NFIB v. Sebelius share a resemblance with the leaks about the Burger Court that provided the narrative for The Brethren. The exposure of inside information then was driven in large part by frustration with the Chief Justice. That is likely the case now as well, although this Chief Justice’s switch is far different from the kind that created such ill will on the Burger Court.

It is standard lore that Chief Justice Burger occasionally manipulated his Conference vote in order to control an opinion assignment that he did not deserve. Discussing Chief Justice Burger, one unnamed justice reportedly told Bernard Schwartz, “The great thing about Earl Warren was that he was so considerate of all his colleagues. He was so meticulous on assignments. [But] all too damned often the Chief Justice will vote with the majority so as to assign the opinion, and then he ends up in dissent.” (Schwartz, Ascent of Pragmatism, 13-14) As Schwartz’s work and The Brethren also reveal, Burger assigned the opinion to himself in an important school-busing case even though he was in the minority (Swann), and Burger assigned Roe v. Wade to Justice Blackmun even though it was unclear that Burger was in the majority (and therefore unclear whether he had the authority to assign the opinion).

The leaks about NFIB v. Sebelius do not suggest that anything of this sort happened. Rather, Chief Justice Roberts voted sincerely at Conference to hold the individual mandate unconstitutional and, appropriately, assigned the opinion to himself. Then in the course of writing it, he switched.

Perhaps some of the Justices view Chief Justice Roberts’s shift more through the lens of their perception of Chief Justice Rehnquist. If Rehnquist had been part of a majority to hold the mandate invalid (and there is every reason to believe he would have been), it is very unlikely that he would have switched his vote. Yet that is not because he was never suspected of tailoring his vote based on concern about perceptions of the Supreme Court, as may have been the case in Dickerson.

In the end, though, the comparisons are of limited utility. These kinds of decisions are intensely individual. The way to evaluate them is not motivational attribution but assessment of the resulting legal merits.

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Justice Brennan and Justice White from the Catholic Bishops’ point of view

During his time on the Rehnquist Court, Justice Brennan voted in seven cases in which the United States Conference of Catholic Bishops (the “USCCB” or “Bishops’ Conference”) filed an amicus curiae brief. He voted for the party supported by the Bishops’ Conference in three out of those seven cases. By contrast, during his time on the Rehnquist Court, Justice White voted in ten cases in which the USCCB filed an amicus curiae brief (the same seven as Justice Brennan, plus three more). He voted for the party support by the Bishops’ Conference in all ten of those cases.

The low level of agreement between Justice Brennan and the Bishops’ Conference is notable given that Justice Brennan was the last beneficiary of a so-called “Catholic seat” on the Supreme Court.  And Justice Brennan’s voting pattern presents an interesting contrast with Justice White’s.  The contrast is noteworthy because President Kennedy appointed White. As the country’s first (and thus far only) Catholic President, Kennedy could not politically afford to nominate a Catholic to the Supreme Court.  By contrast, Brennan’s Catholicism was an important factor in making him an attractive nominee for Eisenhower.  Thus, one reason that Brennan was appointed is that he was a Catholic, while one reason White was appointed is that he was not a Catholic.  Yet White ended up consistently voting with the Catholic bishops on the Rehnquist Court, while Justice Brennan had one of the lowest rates of agreement during the same time period.

There were five other Justices who voted in all ten cases in which the Bishops’ Conference filed an amicus curiae brief and in which Justice White voted: Chief Justice Rehnquist, Justice Blackmun, Justice Stevens, Justice O’Connor, and Justice Scalia. Rehnquist and Scalia joined White in voting for the party supported by the Bishops’ Conference in all ten of these cases. Justice O’Connor voted for that party in eight out of those ten cases, Justice Stevens in three, and Justice Blackmun in two. In the first several years of the Rehnquist Court, then, the three Justices with the best track record from the point of view of the Bishops’ Conference consisted of two Protestants (Chief Justice Rehnquist and Justice White) and one Catholic (Justice Scalia).

[Cross-posted at CLR Forum]

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